15 Mich. 25 | Mich. | 1866
The facts in this case are briefly the following:
One Clark being the owner of a mortgage given by Henry Prior on a farm owned by the latter, took proceedings for its foreclosure under the power of sale, and
The questions which become material for us to consider upon this record, are: First, whether the proceedings before the Commissioner are conclusive upon Prior, -and determine for all collateral inquiries the right of Allen to possession of the land at the time those proceedings were commenced? and if not, and we are at liberty to go back of them, then Second, whether Prior, under the statute, was entitled to notice from Allen before he could be lawfully dispossessed by him?
1. The Circuit Judge held the proceedings before the Commissioner void for want of jurisdiction. It appears from the Commissioner’s record —which was put in evidence— that the proceedings were commenced August 29th,
There was a plea to this complaint, and it is argued that- this is a waiver of any errors. Jurisdiction over the person may be given by voluntary apjxearance and plea; but jurisdiction of the subject matter cannot be given by consent. Even in those cases where parties are authorized to appear and enter a voluntary confession of judgment, it has been several times held in this State that the proceedings were void if any of the statutory requisites wei’e omitted.— Clark v. Holmes, 1 Doug. 390; Beach v. Botsford, 1 Doug. 199; Spears v. Carter, 1 Mich. 19; Wilson v. Dams, 1 Mich. 156. But the present case is not one in which jurisdiction can be obtained by mere consent or confession, or in any other maimer except through the complaint which the statute px-escribes; and the fundamental rule, that the jurisdiction of special and limited tribunals must affirmatively appear on the face of the proceedings or they ax-e void — (Chandler v. Nash, 5 Mich. 409,) — has always been applied to these summary trials with great strictness. In the two cases of Bush v. Dunham, 4 Mich. 339, and Bryan v. Smith, 10 Mich. 229, the defect in the proceedings was precisely the same as in this case: a failure in the coxnplaint to show a right to possession in the plaintiff at the time it was presented to the Commissioner; and in both, the judgment was held void. In the case last named the complaint averred that
It was suggested, however, in the Court below, that the date to the jurat was a mistake of 1861 for 1864; and the Circuit Judge at first admitted evidence to show this mistake. This evidence seems to me clearly inadmissible. A record must be its own interpreter — Rood v. School District, etc. 1 Doug. 502; and if it fails to show jurisdiction on its face, it is impossible to sustain it by proof of facts which rest in the recollection or intentions of witnesses. I say nothing now of any amendment or motion to amend; for here there was no attempt of the kind: the naked case was a record offered in evidence which failed to show jurisdiction, and an attempt to sustain it, not by correction, but by parol evidence of a mistake made in drafting it. If this can be done, it is evident that the validity of the record must depend upon the parol-proof; and this same proceeding might be held valid one day, and void the next, if the witness in the mean time had deceased, or his testimony for any other reason become unattainable. It seems to me very clear that such evidence is at war with the fundamental rules which govern the examination of judicial records; and that the Circuit Judge was right in his final conclusion.
2. The second question is of more general importance, and arises under §2807 of Compiled Laws, which provides
A tenant at sufferance is defined to be one who, having come into possession by right, holds over without right. Co. Lit. 51 b.; 2 Bl. Com. 150. A mortgagor whose estate has been terminated by foreclosure proceedings, is strictly within this definition. — Kinsley v. Ames, 2 Met. 31. At common law such a tenant was not entitled to notice, but the owner might enter at any time, and having regained possession, sue the tenant in trespass for his occupation. — Dorrell v. Johnson, 17 Pick. 266; Butcher v. Butcher, 1 B. & C. 399; Hey v. Moorehouse, 6 Bing. N. C. 52; Pearce v. Ferris, 10 N. Y. 283. The possession of the latter being wrongful, continues only by the 'latches of the owner, since, if assented to, the tenancy ceases to be one at sufferance, and becomes a tenancy at will or from year to year. — 1 Washb. on Real Pr. 394.
It is apparent that the term tenant at sufferance cannot be used in the statute in a sense which would entitle any one holding over wrongfully to the statutory notice, since that would put it in the power of any occupant to prolong a wrongful possession indefinitely. It may, therefore, be well to look at the decisions under similar statutes for aid in giving these words their proper construction.
In Kinsley v. Ames, 2 Met. 29, a mortgagor who had held over for a month after his right was terminated by foreclosure, before possession was demanded from him, was held not entitled to notice, on the ground that the statute which required notice to tenants at will and at sufferance had been so amended as to apply to tenants at will only.
The landlord could not fairly be chargeable with laches while the negotiations were pending, and the retention of possession after they had ceased was in the face of the landlord’s prohibition. In Livingston v. Tanner, 12 Barb. 481, a construction was placed upon the statute which seems to me to speak its real intent, and to accomplish the beneficial purpose for which it was enacted. There a tenant per autre vie had held over for nearly four months without, so far as appeared, any knowledge that his estate had terminated; and stress was laid upon this fact in holding him entitled to notice. The decision places the right to notice not upon the ground of the owner’s assent to the posession, but upon the circumstances existing " in the case which rendered it unjust that the tenant should be dispossessed as a wrong doer without warning, when he was not guilty of intentional wrong, and might not even be aware that he was not holding in his’ own right.
The case last mentioned was reversed by the Court of Appeals —14 N. Y. 64 — on the ground that another
I think I am safe in saying, under the decisions and on general principles, that whenever the occupant continues to hold by the consent of the owner, he becomes entitled to notice as tenant at will; and that where the owner suffers him to remain in possession without objection, and to make such use of the premises as would render it unjust to demand and enforce possession against him without warning, this laches of the owner entitles him to the statutory notice as tenant at sufferance. There is no wrong and no. hardship in this to any one, and it seems to me to accomplish the purpose of the statute.
This construction does not appear to me to conflict at all with the statute which authorizes summary proceedings under chap. 150 of the Compiled Laws, to dispossess a mortgagor who holds over after the foreclosure has become absolute. There is nothing in that provision which warrants us in holding that the position of the mortgagor thus holding over by wrong can not be afterwards changed by the acts or omissions to act of the purchaser. Notwithstanding the statute, it seems very clear to me that if the mortgagor should continue to hold with the purchaser’s assent, he would become tenant at will and entitled to notice as such; and it seems equally clear that without actual assent, he may be suffered to remain in
In the present case the truth of Prior’s statement, that he was entirely ignorant of the foreclosure proceedings until redemption had expired and Clark had deeded to Allen, is not disputed. That he was grossly negligent in thus failing to look after his interests is very clear, and he could not be allowed to set up his want of notice as a defense to the foreclosure. The statutory notice is conclusive upon him in any question of title. But different considerations present themselves when the question is made whether he shall be treated as a wrongdoer. Prior had in the mean time gone on to put in his spring crops, and this labor was fully completed before demand was made upon him for the land. While the law charges the mortgagor with notice of the foreclosure proceedings, and will not allow him to dispute it as a defense to the sale, it is no hardship to the purchaser to hold him constructively notified of the use which is being made of the land, by the expenditure of money and labor, after the sale has become absolute. If without objection he allows the occupant to go on and sow crops on the supposition that he is to be suffered to reap them, he must be held impliedly to assent to the cultivation ; or, at least, to be guilty of such laches as equitably to entitle the occupant to the statutory warning-before he can be dispossessed.
Allen obtained possession from Prior by threats of employing force. The jtossession thus obtained cannot be regarded as surrendered voluntarily, and would not deprive Prior of bis right to the ripened crops. It is suggested that the bill which was filed to set aside the foreclosure for fraud must be regarded in the light of a bill to redeem, and that when that was dismissed, there was an adjudication against Prior’s rights. -No qitestion of the right to redeem arises here, or of any other right springing from the relation of mortgagor and mortgagee. All such rights are undoubtedly extinguished. The question now is, whether by the implied assent of Allen, a new relation has not been created, under which Prior is protected in the possession until notified to surrender it.
I think the judgment of the Circuit Court should be affirmed.
The principal questions arising in this cause are dependent upon the relations existing between plaintiff in error and one Henry Prior,vspringing out of a mortgage foreclosure and legal proceedings subsequent thereto.
On March 22, 1862, a mortgage made by Prior to one
Evidence was introduced of a complaint, under the statute regulating proceedings to obtain possession of lands, and a summons issued upon it, — -the summons bearing date August 29, 1864,— while the complaint, by a clerical mistake, was stated to have been sworn to, August 29, 1861 ; the mistake being explained by the oath of the agent who verified it. The Court rejected the docket of the Commissioner, showing proceedings to judgment on this complaint, and a writ of restitution issued thereon, and served, on the ground that the docket did not show the year when the proceedings were- instituted. . The writ of restitution having been used by the proper authorities to put plaintiff in possession, defendants are alleged to have entered with force and removed the standing as well as gathered crops. The Circuit Court, among other rulings, held the legal proceedings void; and held, further, that Prior was entitled to notice before he could be required to surrender possession.
Evidence was introduced tending to prove the premises had been sold on the mortgage, and also by the purchaser at the mortgage sale, for less than their value, but the testimony has no bearing upon any legal question now before us, and was probably introduced with a view to its effect on the jury. There are circumstances which, if we were at liberty to be moved by such considerations, might induce a belief that Prior’s land had been sold at a great sacrifice; but, if sold on his mortgage according to law, to the highest bidder, the law
The principal inquiries, therefore, relate to the question whether, after obtaining an absolute title against Prior by the expiration of the statutory period for redemption, plaintiff or his grantor lost the right to have possession • of the estate which they so acquired.
I do not think there is any such defect in the proceedings to oust Prior as ..renders them invalid. So far as the alleged defects in the docket dates are concerned, I do not regard that record as fatally imperfect. While the date of August 29th is not set opposite any year, the docket shows that a summons was immediately issued upon the complaint, returnable September 2d, 1864; and the summons, produced and -proved in connection with it, is dated August 29th, T864, and is so returnable. The complaint is certified to have been sworn to on August 29th, 1861, but this is explained to have been a mistake. Had there been no appearance before the commissioner, or had there been any objection taken in the proceedings, it is possible this might have been a fatal
Pleadings are always understood to date, as to their allegations, from their actual filing, and that is the only date material upon an issue, and may be shown by parol. Lester v. Jenkins, 8 B. & C. 389; Wilton v. Girdlestone, 5 Barn. & Ald. 847; Granger v. George, 5 B. & C. 149; Michaels v. Shaw, 12 Wend. 587; Lyttleton v. Cross, 3 B. & C. 317. Judgment having been rendered against him, he took no steps to remove it, either by appeal or certiorari. I do not understand upon what principle he can now attack the judgment collaterally. There is no authority for saying that such • proceedings, when a party has gone to trial without objection, are voidable, except in a court of review. And, until reversed, I think the proceedings conclusive.
But I think the rights of the plaintiff would stand equally well without reference to these proceedings.
The Corn-t charged the jury expressly that it was not a trespass in the defendants to enter upon the land and remove the crops, within a reasonable time after plaintiff obtained possession; and that plaintiff had no right in them. And the reason for this broad charge is probably found in the next instruction to the jury, that Prior was not called upon to leave, .until, as tenant at sufferance, he had received three months notice to quit, if he was allowed to remain and put in crops until June 23d, 1863, without objection, or any steps to obtain possession. The case shows there was no acquiescence except a mere inaction, without proof of personal knowledge or notice of Prior’s operations. The case then, upon this hypothesis — if there were no other facts modifying it — would present
At the common law, inasmuch as a tenant at sufferance was not entitled to notice to quit, it did not become very material what classes of unlawful holding over were called by that name. And there are some authorities which classify mortgagors holding over, as such tenants. But since it has been found expedient to allow notice to tenants at sufferance, it has been found necessary to be somewhat more accurate, and as the law now stands with us, as well as elsewhere, there are either tenants at sufferance not entitled to any notice, or else there are holdings over after the expiration of lawful tenancies, which are something else»than tenancies at sufferance. It makes very little difference in the present case which of these results is accepted.
Our statute, allowing tenancies at will and by sufferance to be terminated by notice, inasmuch as it nowhere defines either of these tenures, must be presumed to adopt the common law definition, which, where applicable at all, reaches all cases where a person once having a lawful tenure “ continues after his estate is ended and wrongfully holdeth against another.” — 1 Inst. 51. There is no difficulty in learning when tenancy at sufferance begins. There is no gap between the lawful and unlawful holdings; and when the legal estate ends, the estate at sufferance at once succeeds, if the tenant remains in possession. It is also well settled, that a tenant at sufferance is not a trespasser, unless he attempts to hold over after the landlord re - enters and terminates that peculiar occupancy. — 2 Bl. Com. 150 ; Dorrell v. Johnson, 17 Pick. 263 ; Butcher v. Butcher, 1 B. & C. 399. The wrong is not criminal, but it is nevertheless by construction of law a wrongful act to retain possession of land a single moment after the right terminates; and there is no middle ground between a
In New York, there is one case which undertook to furnish a rule upon the subject. The statute, there as here, contemplated a notice to terminate a tenancy at sufferance. There, as we shall see is also the case here, the statute in another place used language inconsistent with any right to notice, where certain tenants held over after their terms expired. In Rowan v. Lytle, 11 Wend. 616, where such a holding over had continued three months and twelve days from the termination of a lease, it was held the delay had not entitled defendant to notice. The court, in attempting to decide what delay would be long enough, lay down this rule. “The object of the legislature will be best promoted by holding that such notice is not necessary, unless the landlord has permitted the tenancy at sufferance to continue for such a length of time as to imply assent.” p. 620. This language is equivalent to holding, what under the statutes is I think the true rule, that when a tenant, in the cases specified, holds over beyond his term, he can never be entitled to notice unless he has become a tenant at will. For such tenancy always becomes tenancy at will the moment consent can be inferred. And such is Mr. Taylor’s interpretation of this very decision. — Taylor Land & Ten. § 65. In other words, until such assent removes the wrong, such a tenant has no rights whatever against the land owner.
Our statutes seem to remove any ambiguity on the subject. The provision concerning notices to terminate
The utmost that can be claimed for this is that it covers all such tenancies as are not otherwise provided for. In the chapter concerning summary proceedings for the possession of land, it will be found that certain classes of holding over (including the one now in controversy), are expressly distinguished from such tenancies at sufferance as require notice.— 2 C. L. § 4985. Those excepted classes are first, cases where persons, hold over after the term for which premises are demised is ended, or contrary to the conditions of any lease or agreement; second, cases where rent is in arrear after demand of possession; and third, where a person continues in possession of premises sold under mortgage or execution, after the redemption has expired. And, after providing for an immediate right -of possession in, these cases, the statute embraces in a fourth and distinct class, cases “ where any tenant at will, or by sufferance, shall hold over after the determination of his estate by a notice to quit, as provided by law.”
Here, then, we have the case of a mortgagee holding over, distinguished from such tenancies at sufferance as require- notice, in the most unequivocal terms. And even if we could under other circumstances be allowed to regard the tenant’s ignorance in fact of the termination of his tenancy, as any reason for affecting the rule, we can have' no right to do so under this statute, which is evidently designed to protect all who cannot be supposed to have the means of knowing where their rights end.
The cases excepted from the necessity of notice are all cases where the tenant has full means of information. A man must be supposed to know the terms of his tenure, and therefore a lessee who violates his lease must be held to a knowledge of its violation. A mortgagor must
But a court can not, on any safe principle, even where the rule of law is severe, undertake to change it on any imagined ground of hardship. Still less can it be permissible to change a certain and simple rule of law into one dependent on the fluctuating notions of a jury. If we hold that a mortgagor retaining possession is entitled to notice, under any circumstances short of his being a tenant at will, we have no authority of law for holding that he is not entitled to it at once.
There can be no dispute as to when the rightful holding ceases, and none therefore as to the time when the wrongful holding begins. The expiration of redemption is the only point of time when the tenure changes, and then, if ever, the holding by sufferance commences.
In the case of Livingston v. Tanner, 12 Barb. 481, where a tenant for the life of another held over innocently, after the life estate had, without his knowledge, been terminated, the Supreme Court, moved by the apparent hardship of the case, after a delay of four months before possession demanded, undertook to bring the party within the statute providing for terminating tenancies at sufferance by notice, although there was another statute which declared such persons trespassers. But this decision was reversed by the unanimous opinion of the Court of Appeals; who held that, while the • defendant was undoubtedly a tenant at sufferance by the common law, the fact that a statute made special provision for his case showed that this tenancy was thereby removed from its
It seems to me clear that under oúr statute, whether this be technically a tenancy at sufferance, or any. other species of wrongful deforcement, it is not such a tenancy as requires notice to terminate it.
It may also be remarked that even if there had been any doubt about Prior’s position under the first forecloseure, and after the delay referred to, there can be none as to his duty on the dismissal of his bill. It is a well settled rule that a mortgagor can file no bill for relief, which will not be regarded as a bill to redeem; and it is equally settled that the dismissal of a bill to redeem operates as a foreclosure. Prior certainly had notice of the dismissal of his own bill; and there has been no laches since. This confirmed the validity of the first foreclosure. And he could not at once rely on it and repudiate it.
I think, however, as before intimated, that his tenancy was one that required no notice to terminate it, and also that the Commissioner’s proceedings to oust him -cannot be assailed collaterally.
As these points dispose of the case, it is not necessary to refer to the other errors assigned.
The court being thus equally divided, the judgment below was affirmed.